Momentum Platform Subscription Terms and Conditions (“Terms”) apply to Client’s use of the Momentum Platform, purchase of Credits and use of Credits in activating Campaigns.
Client shall not use the Momentum Platform for any purposes beyond the scope of the access granted in this Agreement. Client shall not, directly or indirectly, and shall not permit any third party to: (i) copy, modify, or create derivative works of the Momentum Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Momentum Platform; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Momentum Platform or any software, documentation or data related to the Momentum Platform, in whole or in part; (iv) remove any proprietary notices from the Momentum Platform; (v) use the Momentum Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vi) utilize the Momentum Platform to create, develop, enhance, or modify any competing product or service. Client is responsible and liable for all use of the Momentum Platform resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, ProductWind may suspend Client’s access to any portion or all of the Momentum Platform if: (i) ProductWind reasonably determines that (a) there is a disruption, security risk, threat or attack on the Momentum Platform or to any other client or vendor of ProductWind; (b) Client is using the Momentum Platform for fraudulent or illegal activities; or (c) ProductWind’s provision of the Momentum Platform to Client is prohibited by applicable law.
Each Party (“Receiving Party”) shall not disclose, publish, or disseminate the Confidential Information (as defined below) of the other Party (“Disclosing Party”) to anyone other than such Receiving Party’s employees and contractors with a need to know such Confidential Information. Each Party agrees to take the same measures used to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care, to prevent any unauthorized use, disclosure, publication, or dissemination of the other Party’s Confidential Information. Each Receiving Party agrees to use and disclose the Disclosing Party’s Confidential Information for the sole purpose of carrying out such Receiving Party’s rights and obligations under this Agreement and shall be responsible and liable for all such usage and/or disclosure. Receiving Party may disclose Confidential Information if and to the extent that such disclosure is required by applicable law, regulation, or court order, provided that, as permitted by applicable law, Receiving Party (i) uses reasonable efforts, at Disclosing Party’s expense, to limit the disclosure by means of a protective order or a request for confidential treatment and (ii) provides Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
“Confidential Information” means confidential and proprietary information of a Party, whether in oral, written or other form, which is marked “confidential” or “proprietary,” or which should reasonably be deemed to be confidential. Confidential Information does not include information that: (1) is now or subsequently becomes generally available to the public through no fault or breach of the Receiving Party; (2) the Receiving Party can demonstrate to have had rightfully in its possession prior to disclosure by the Disclosing Party; (3) is independently developed by the Receiving Party without the use of any Confidential Information of the Disclosing Party; or (4) the Receiving Party rightfully obtains such information from a third party without a breach of confidentiality. In addition to each Party’s obligations upon the expiration or termination of this Agreement, upon either Party’s request, the other Party shall return all of the requesting Party’s Confidential Information in its possession or under its control in accordance with the requesting Party’s directions and shall not thereafter retain any copies of the other Party’s Confidential Information.
Client owns all right, title and interest in and to all data or other information made available to ProductWind by Client, including Client’s trademarks, trade names, trade dress, service marks and logos (“Client Marks”) any other content in any form or media (“Client Content”).
Notwithstanding the foregoing, ProductWind may monitor access and use of the Momentum Platform and collect and compile meta-data, data and information related to Client’s access and use of the Momentum Platform that is and can be used by ProductWind for application monitoring, pricing, and ProductWind’s technology management purposes (“Application Monitoring Data”). The same data may be aggregated and anonymized to compile statistical and performance information related to the provision and operation of the Momentum Platform (“Aggregated Statistics”). Client acknowledges that ProductWind may compile Aggregated Statistics based on Client Content. Client agrees that ProductWind may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Client or Client’s Confidential Information. Client hereby grants to ProductWind a non-exclusive, perpetual, irrevocable, transferrable, royalty-free, worldwide license to access, revise, reproduce, distribute, and use and display Client Content incorporated within the Aggregated Statistics.
Client acknowledges that, as between Client on the one hand, and ProductWind on the other hand, ProductWind owns all right, title, and interest, including all intellectual property rights therein, in and to the Aggregated Statistics, and Application Monitoring Data.Client acknowledges and agrees that the Momentum Platform, and any copies, updates, and/or derivative works thereof, along with the right to make, have made, practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, and/or create works derivative of any of the foregoing, exclusively belong to and are the property of ProductWind. Client further acknowledges and agrees that: (i) any existing technology, methods, processes, techniques, software (including source code, object code and any portions thereof) content, ideas, information and related intellectual property (including without limitation all patent, copyright, trademark, trade secret and other intellectual-property or proprietary rights therein) of ProductWind, any derivatives or improvements to the foregoing created or developed by ProductWind (alone or with others), or otherwise any of the foregoing created, developed by or on behalf of ProductWind outside of this Agreement, that is later used in the performance of services to Client, or (ii) generally applicable tools, concepts, processes, models, techniques, software, and the like developed or created in connection with any services provided to Client without reliance on the Confidential Information of Client exclusively belong to and are the property of ProductWind (together with ProductWind Marks, the “Background IP”). The parties agree that ProductWind owns all right, title and interest in and to the Background IP. Except for the limited rights granted to Client in this Agreement, all other rights, title and interest in the Background IP are reserved by ProductWind.Any Client feedback or input received by ProductWind regarding the Momentum Platform (“Feedback”) is the property of ProductWind, and Client will and hereby does assign to ProductWind all right, title and interest to Feedback.
Each Party represents and warrants to the other that; (i) it has the requisite power and authority to execute and deliver this Agreement and perform its obligations herein: (ii) this Agreement has been duly authorized, executed, and delivered by each Party, and is a legal, valid, and binding obligation of each Party, enforceable against such Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and other similar laws and principles of equity affecting creditors’ rights and remedies generally; and (iii) this Agreement does not violate, conflict with, result in a breach of the terms, conditions, or provisions of, or constitutes a default or an event of default under any other agreement to which such Party is a party.
OTHER THAN THE WARRANTIES SPECIFICALLY MADE IN THIS AGREEMENT, THE MOMENTUM PLATFORM IS PROVIDED “AS-IS” AND “AS-AVAILABLE.” PRODUCTWIND MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING OUT OF CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE MOMENTUM PLATFORM. PRODUCTWIND DOES NOT WARRANT THAT THE OPERATION OF THE MOMENTUM PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE OR THAT PRODUCTWIND WILL CORRECT ALL DEFECTS. FURTHER, PRODUCTWIND AND CLIENT ACKNOWLEDGE AND AGREE THAT PRODUCTWIND DOES NOT AND CANNOT GUARANTEE ANY SPECIFIC BUSINESS OUTCOME OR RESULT FROM CLIENT’S SUBSCRIPTION TO THE MOMENTUM PLATFORM UNDER THIS AGREEMENT.
IN NO EVENT WILL PRODUCTWIND BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF PRODUCTWIND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PRODUCTWIND’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF SUBSCRIPTION FEES PAID OR OWED BY CLIENT TO PRODUCTWIND DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
OTHER THAN THE WARRANTIES SPECIFICALLY MADE IN THIS AGREEMENT, THE MOMENTUM PLATFORM IS PROVIDED “AS-IS” AND “AS-AVAILABLE.” PRODUCTWIND MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING OUT OF CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE MOMENTUM PLATFORM. PRODUCTWIND DOES NOT WARRANT THAT THE OPERATION OF THE MOMENTUM PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE OR THAT PRODUCTWIND WILL CORRECT ALL DEFECTS. FURTHER, PRODUCTWIND AND CLIENT ACKNOWLEDGE AND AGREE THAT PRODUCTWIND DOES NOT AND CANNOT GUARANTEE ANY SPECIFIC BUSINESS OUTCOME OR RESULT FROM CLIENT’S SUBSCRIPTION TO THE MOMENTUM PLATFORM UNDER THIS AGREEMENT.
Independent Contractor
ProductWind and Client acknowledge that ProductWind is an independent contractor, and neither ProductWind nor Client is intended to or should be construed to be an agent, partner, joint venture or employee of the other. Neither Party has any authority to bind or otherwise obligate the other Party in any manner, and neither Party may represent to anyone that it has a right to do so.
Assignment
Except as otherwise provided herein, neither Party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without the other Party’s prior written consent, such consent shall not be unreasonably withheld or delayed; except that a Party may assign this Agreement without consent from the other Party by operation of law or otherwise to (a) an affiliate, or (b) any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void. This Agreement does not confer any rights or remedies upon any person or entity not a Party hereto. The foregoing notwithstanding, this Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
Force Majeure
Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause which is beyond the reasonable control of such Party.
Notices
To be effective, notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, or certified or registered mail, (postage prepaid and return receipt requested) to the other Party at the address for each Party as set forth on the signature page and will be effective upon receipt.
Governing Law
This Agreement will be governed by and interpreted in accordance with the laws of the State of California without reference to its choice of law rules. The Parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in San Diego, California, in any litigation arising out of this Agreement or the Services.
Remedies
Except as otherwise expressly provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. Each Party acknowledges and agrees that any actual or threatened breach of confidentiality will constitute immediate, irreparable harm to the non-breaching Party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching Party agrees to waive any bond that would otherwise be required. If any legal action is brought by a Party to enforce this Agreement, the prevailing Party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing Party.
Compliance with Laws
Each Party shall comply with those laws and regulations in jurisdictions that are specifically applicable to such Party.
Waivers
To be effective, any waivers must be in writing and signed by the Party waiving such rights. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability
If any provision of this Agreement is, for any reason, held to be unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).
Counterparts
This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
Entire Agreement
This Agreement constitutes the final and entire agreement between the Parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the Parties concerning such subject matter. No terms and conditions proposed by either Party shall be binding on the other Party unless accepted in writing by both Parties, and each Party hereby objects to and rejects all terms and conditions not so accepted. No amendment to this Agreement will be effective unless in writing and signed by the Party to be charged.